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High Court of Judicature at Madras
G. RAJASURIA, J.
K.P. Annadurai
Versus
Kalaiselvi & Others
S.A. No. 139 of 2013 & M.P. No. 1 of 2013
Decided on : 22-03-2013
Will - Property Dispute - 2007(4) CTC 70 – Chinna Nachiappan and another vs. PL. Lakshmanan - 2008(6) CTC 237 [Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. and others] - Section 100 CPC, substantial question of law, burden of proof, possession, declaration of title
Fact of the Case:
The plaintiff filed a suit for bare injunction to restrain the defendants from interfering with his possession of the suit property. The defendants claimed to be legal heirs of the deceased and contested the suit, alleging the Will was not proved and the plaintiff was not in possession.
Finding of the Court:
The trial and appellate courts dismissed the suit, holding that the plaintiff failed to prove possession and the suit was bad for want of a prayer for declaration of title.
Issues: Proof of possession, necessity of prayer for declaration of title, burden of proof, substantial question of law
Ratio Decidendi: The burden of proof lies on the plaintiff to prove possession and title. A suit for bare injunction may be insufficient if there is a dispute relating to title, necessitating a prayer for declaration of title. A second appeal lies only on a substantial question of law impacting the final decision.
Final Decision: The second appeal was dismissed as no substantial question of law was found, and the judgments of the lower courts were upheld.
1. This Second appeal is focussed by the plaintiff animadverting upon the judgment and decree dated dated 19.11.2001 passed by the Sub-Court, Namakkal in A.S.No.19 of 2010, confirming the judgment and decree dated 31.12.2009 passed by the Principal District Munsif, Namakkal, in O.S.No.222/2006, which was one for permanent injunction.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this second appeal would run thus:
The appellant herein, namely, Annadurai, filed the suit for bare injunction, so as to restrain the defendants from interfering with his peaceful possession and enjoyment of the suit property found described in the schedule of the plaint.
4. The nutshell facts that could be deduced and understood from the plaint could pithily and precisely be set out thus:
(i) The plaintiff-Annadurai's brother Asaithumbi during his life time turned out to be an estranged husband of D.1, and D2 to D4 happened to be the children of Asaithumbi and D.1, living with D1. Inasmuch as Asaithambi was looked after by the plaintiff-Annaduri, the former, due to love and affection towards the latter, executed the Will dated 29.10.2003, bequeathing the suit property in favour of the plaintiff.
(ii) The said Asaithambi died on 7.9.2005, whereupon, the Will came into effect. While so, the defendants, who had not been living along with the said testator, all of a sudden started laying claim over the suit property and tried to barge into the suit property, wherein he had already put his parents in possession.
5. Per contra, the defendants filed the written statement, the warp and woof of the same would run thus:
(a) The suit was bad for want of a prayer for declaration and title.
(b) Neither the plaintiff nor his parents were in possession and enjoyment of the suit property as on the date of filing of the suit. In fact, the Will pleaded in the plaint is a bogus one and the plaintiff attempted to dispossess the defendants, which resulted in the defendants lodging a complaint with the police on 3.12.2005. Accordingly, the defendant would pray for the dismissal of the suit.
6. Whereupon issues were framed. Up went the trial, during which, the plaintiff examined himself as P.W.1 along with petitioner.Ws.2 and 3 and marked Exs.A1 to A9. The second defendant examined himself as D.W.1 and Exs.B1 to B11 were marked on the defendants' side.
7. Ultimately the trial Court dismissed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court, confirming the judgment and decree of the trial Court.
8. Challenging and impugning the judgments and decrees of both the Courts below, this second appeal has been focussed by the plaintiff on various grounds and also suggesting the following substantial questions of law:
"(a) Whether the learned appellate Judge has to analyse the matter incidentally when the case is framed in question of law.
(b) Whether a person has right to execute a Will when the wife and children deserted him?
(c) Whether the tile of ownership is essential for possession?
(d) Whether the documents proving possession is inadmissible?
(e) Whether a mistake in titles make a man's rightful possession ineffective?
(f) Non-adoption of procedure is not a bar for a possession holder.
(g) The respondents 1 to 3/defendants 1 to 3 cannot step into the shoes of the appellant/plaintiff's omission. (extracted as such)
9. The learned counsel for the appellant/plaintiff would pyramid his arguments, which could succinctly and precisely be set out thus:
(i) Both the Courts below fell into error in holding as though the Will was not proved and that the plaintiff and his parents were not in possession of the suit property.
(ii) During the life time of Asaithambi-the testator, a litigation erupted between the defendants and Asaith
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